Opinions
‘Because of sex’ approach to protecting trans people
Many analyses of Bostock decision missed the real history
“Here, I thought, looking around me, is where it all changed, because I was still too young to understand that history is not simply made up of moments of triumph strung together like pearls. I didn’t know that large changes were made up of many small ones, and of moments of suffering and backsliding and incremental, selective progress; unnecessary sacrifices and the opportunistic, privileged and lucky walking forward over the vulnerable and the dead.” —Carmen Maria Machado
The road to LGBTQ equality has been long and winding, made up, legally, of two paths — sex (gender) stereotyping and “because of . . . sex.” Until the Bostock decision last month we had a quantum mechanical, “Schrödinger’s Cat” causal conundrum — would the decision be based on “sex” as written in Title VII of the 1964 Civil Rights Act, or “sex stereotyping” as developed in the landmark 1989 Price Waterhouse v. Hopkins Supreme Court decision? Many guessed it would be the former, “because of . . . Gorsuch” and his penchant for textualism, but that didn’t stop plaintiff Aimee Stephens’ lawyer, David Cole, from arguing with the latter. Turns out it was the former, but before I trace the social history of that path, I would like to point out a delicious irony.
It’s long been understood that the modern Supreme Court rarely leads, and usually follows, public opinion. That opinion is shaped by the people, and primarily by the people’s activist corps. In the case of the gay rights movement, the people universally known through the 1960s as homosexuals became known in the 70s as gay people. Why? Because the “sex” in “homosexual” directed one’s gaze to sex acts, which is still what most Americans conjure in their minds when they hear the word “sex.” And since many were repelled by the thought of gay sex, it became evident a different, de-sexed, label was necessary.
Similarly with the trans community, which had been universally known as the transsexual community through the 1980s, and which de-sexed “transsexual” to “transgender” in the ‘90s (the first national trans rights group, founded by Riki Wilchins and Denise Norris in 1993, was called “Transexual Menace,” and the second, was the “National Transgender Advocacy Coalition,” in 1999), and then finally just the single syllable “trans” in the aughts, to match the single syllable, “gay.” Language matters. Just as Americans viewed homosexual people through the lens of their sex acts, they viewed transsexual people the same way, often reduced to sex workers and homicidal maniacs (“Dallas Buyer’s Club,” 2013 and Hitchcock’s classic, “Psycho,” 1960).
So, today, gay and trans individuals have their employment rights, and soon full protections with the Equality Act next year, because of a return to the modern source of those rights, the Civil Rights Act of 1964, and “because of . . . sex.” Not gender, but sex, and, refreshingly so, but devoid of any implications of sexual activity. Justice Gorsuch, interestingly, returned to using the archaic term “homosexual” throughout his opinion, but did not revert to “transsexual,” and treated Ms. Stephens respectfully in his comments.
How did we get here? In the weeks following the decision many of the analyses of the decision missed the real history. That history is written by the victors, but it also very much matters which victors do the writing.
The path of “because of . . .” and “but for” sex began in the 60s, as Justice Gorsuch mentioned: Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.
Trans persons won some lower court decisions in the ‘70s, before the religious and feminist backlash began in 1979 with Janice Raymond and then the Reaganites. Trans plaintiffs lost in the late ‘70s and ‘80s because transsexualism was not recognized as a form of sex (Holloway v. Arthur Andersen, 1977, Sommers v. Budget Marketing, 1982 and Ulane v. United Airlines, 1984). And then, in 1989, came Price Waterhouse v. Hopkins, and the landscape utterly changed for trans plaintiffs.
The first, and until Bostock, only SCOTUS decision (and victory) for a trans plaintiff occurred in 1994, in a unanimous Eighth Amendment decision written by Justice Souter on behalf of the plaintiff, a black trans woman, Dee Farmer. The next federal appeals court case, and the first in a string of victories leading to Bostock, was Smith v. City of Salem in 2004, won on both sex and sex stereotyping concerns, followed by another Sixth Circuit case, Barnes v. City of Cincinnati in 2005. Philecia Barnes was also a black trans woman and she won “because of sex.” The only hiccup in this long chain of victories was Etistty v. Utah Transit Authority in the 10th Circuit in 2007. This was followed in rapid succession by the blockbusters: Schroer v. Billington, 2008; Glenn v. Brumby, 2011; and Macy v. Holder, 2012.
It was the unanimous Macy decision at the EEOC, led by Commissioner Chai Feldblum, that protected trans persons in all 50 states, and cemented the “because of sex” approach to protecting trans persons. Professor Feldblum, a major author of the 1991 Americans with Disabilities Act (ADA), had been living in Takoma Park, Md., in Montgomery County in 2007-08 when I led the campaign for Basic Rights Montgomery to pass and defend the county gender identity law. That law generated the first bathroom bill backlash in the United States, and Professor Feldblum, who had been a believer in the doctrine that trans status was a function of sex and, therefore, covered by Title VII, was further encouraged to pursue it if she ever got her chance in the federal government to make it a reality. Presciently, these were her words 20 years ago: “But a strict textualist approach might work as well (or even better) for those seeking to achieve broad protection for gay people and transgender people. Under such an approach, the intent of the enacting Congress (or state legislature) is not as important as the words the legislature chose to use.”
It had been obvious to me, as well, as I had been teaching and lobbying for years on the medical basis of transsexualism being rooted in brain sex. Research begun in 1995 had been making that very plain. But few LGBTQ attorneys, with the notable exception of Katie Eyer, believed in the possibility of progressive textualism, even though the Constitution is the product of the Enlightenment.
So after being nominated by President Obama to the Equal Employment Opportunity Commission (EEOC) and confirmed by the Senate, Professor Feldblum looked for the right case and found it in Mia Macy. She then did the same for David Baldwin in the first national gay rights victory, Baldwin v. Foxx, in 2015.
Just looking at these cases it was clear that the federal courts (and some state courts as well) were beginning to respect trans persons enough, including black trans women, beginning in the ‘90s to not only not summarily throw them out of court, but to seriously apply the “because of sex” and sex stereotyping arguments to them. All that at a time when fewer than 8% of Americans (in a 2013 poll) admitted to knowing a trans person; when gay people, far better represented in the media and known in their communities, were routinely failing in federal court. Yet there have been post-Bostock analyses by highly respected civil rights lawyers that turn this history on its head. For example, Shannon Minter, the trans attorney for the National Center for Lesbian Rights (NCLR), said: “We’ve always known that our legal arguments are strong and should be accepted, but the reason it took decades for the courts to accept these arguments was because transgender people were so foreign to the courts.”
This is not the first time. After promoting the trans legal case “because of sex” for years, I tried to get the national LGBTQ, and particularly trans, organizations to recognize our success post-Macy. They would have none of it. The lawyers at HRC, the National LGBT Task Force, and even NCTE, the National Center for Transgender Equality on whose board I sat, refused to acknowledge the breakthroughs. To get the word out I had to publish a pamphlet, with attorney Jillian Weiss and activist Riki Wilchins, which was promoted by Masen Davis and the Transgender Law Center, the only nationally oriented trans group willing to get on board. We were also supported by Tico Almeida and Freedom to Work.
Fortunately, thousands of trans persons got the message, and filed claims with the EEOC. Many won, with most settling out of court because, you know, the law matters. Yet others have lived the past eight years in fear and anxiety because our institutions’ lawyers repeatedly said that we had no protections without a decision of the Supreme Court. I countered that it would take years, or might never happen because we were winning all our cases, and without a split at the appeals court level the Court might not even take up the issue. Fortunately for us today, SCOTUS rolled us into the Circuit split on the gay rights cases (Bostock and Zarda), and we pulled the gay community along to victory. No gays left behind. We had not lost a Circuit Appeals case since 2007, the only one in the 21st century, so I, for one, was not surprised.
People who are committing themselves to activism need to understand the history so as to most effectively pursue their goals in the future. LGBTQ folks need to understand the bureaucratic resistance within their own movements, from the most well-meaning people. It is, indeed, always a long and winding road to liberty and equality.
Dana Beyer is a longtime D.C.-based advocate for transgender equality.
Opinions
Lighting candles in a time of exhaustion
Gunmen killed 15 people at Sydney Hanukkah celebration
In the wake of the shooting at Bondi Beach that targeted Jews, many of us are sitting with a familiar feeling: exhaustion. Not shock or surprise, but the deep weariness that comes from knowing this violence continues. It is yet another reminder that antisemitism remains persistent.
Bondi Beach is far from Washington, D.C., but antisemitism does not respect geography. When Jews are attacked anywhere, Jews everywhere feel it. We check on family and friends, absorb the headlines, and brace ourselves for the quiet, numbing normalization that has followed acts of mass violence.
Many of us live at an intersection where threats can come from multiple directions. As a community, we have embraced the concept of intersectional identity, and yet in queer spaces, many LGBTQ+ Jews are being implicitly or explicitly asked to play down our Jewishness. Jews hesitate before wearing a Magen David or a kippah. Some of us have learned to compartmentalize our identities, deciding which part of ourselves feels safest to lead with. Are we welcome as queer people only if we mute our Jewishness? Are those around us able to acknowledge that our fear is not abstract, but rooted in a lived reality, one in which our friends and family are directly affected by the rise in antisemitic violence, globally and here at home?
As a result of these experiences, many LGBTQ+ Jews feel a growing fatigue. We are told, implicitly or explicitly, that our fear is inconvenient; that Jewish trauma must be contextualized, minimized, or deferred in favor of other injustices. Certainly, the world is full of horror. And yet, we long for a world in which all lives are cherished and safe, where solidarity is not conditional on political purity or on which parts of ourselves are deemed acceptable to love.
We are now in the season of Chanuka. The story of this holiday is not one of darkness vanishing overnight. It is the story of a fragile light that should not have lasted. Chanukah teaches us that hope does not require certainty; it requires persistence and the courage to kindle a flame even when the darkness feels overwhelming.
For LGBTQ+ Jews, this lesson resonates deeply. We have survived by refusing to disappear across multiple dimensions of our identities. We have built communities, created rituals, and embraced chosen families that affirm the fullness of who we are.
To our LGBTQ+ siblings who are not Jewish: this is a moment to listen, to stand with us, and to make space for our grief. Solidarity means showing up not only when it is easy or popular, but especially when it is uncomfortable.
To our fellow Jews: your exhaustion is valid. Your fear is understandable, and so is your hope. Every candle lit this Chanukais an act of resilience. Every refusal to hide, every moment of joy, is a declaration that hatred will not have the final word.
Light does not deny darkness. It confronts it.
As we light our candles this Chanuka season, may we protect one another and bring light to one another, even as the world too often responds to difference with violence and hate.
Joshua Maxey is the executive director of Bet Mishpachah, D.C.’s LGBTQ synagogue.
Opinions
Holidays not always bright for transgender people
‘Home’ often doesn’t feel like home for trans folks
Christmas is family time, isn’t it? It seems like every TV ad, every rom-com with a Christmas tree and fairy lights, every festive novel in your local bookshop is trying to persuade you of this. To push it on you — and what’s wrong with it, you may ask? Well, just think about the thousands of people who cannot spend this holiday season with their loved ones. Think about the transgender community specifically.
Even without the increasingly hostile political climate against trans people in modern-day America, many of them are not welcome in their own families. It is not something that started with MAGA, although MAGA certainly made it worse. “Home Alone” is not a comedy when your family does not accept you, and you are stuck all alone on Christmas. I’ve never been alone at holidays, but I know — as a trans person who has always loved family stories but estranged from their family — how the season can be tough.
Let’s make it clear: I like the holiday season, and I would never ask you to cancel it. I just want you to support your trans friends, and the trans community in general.
According to recent data from the Williams Institute at UCLA, more than 2.8 million people in the U.S. now identify as trans, including roughly 724,000 youth aged 13–17. And not all of them are out or accepted at home. That means many thousands are navigating teenage years — the years when so many family traditions, holidays, and emotional expectations are formed — while being invisible to their own families, or abused by them.
But for a large proportion of trans people, “home” doesn’t feel like home.
In the landmark 2015 U.S. Transgender Survey, many of respondents who were out to their immediate family reported some form of rejection: relationships ending, being kicked out, being denied the ability to express their gender, or being sent away.
Among those who did experience family rejection, 45 percent had experienced homelessness.
Other research shows how deeply rejection affects health: trans youth without family support face far higher rates of psychological distress, suicidality, and substance misuse.
So when you hear “Christmas is family time,” for many trans adults that message comes with flashbacks and pain. For trans kids it may be worse.
Also, intersectionality made everything even hard. Take trans people of color. A report on Black trans Americans found:
- 42 percent had experienced homelessness
- 38 percent lived in poverty
- Rates of sexual violence, mistrust of authorities, and fear of asking for help were also significantly higher
And if a trans person is also disabled, autistic, or living with chronic health conditions, the barriers become even bigger. Just imagine what it is like when your parents try to change you for being autistic all your childhood, and then kick you up for being trans. Ableism often goes hand in hand with transphobia; support systems become less accessible; and acceptance becomes harder to find. Holidays meant not just that you sometimes couldn’t share fun because of lack of inclusion now, but also because of mental health issues triggered by the past.
So yes — when you talk about Christmas stories of family, warmth, fairy lights and acceptance, it’s important to remember that for many trans people, Christmas is not something nice and cozy. Many trans people are suffering from PTSD, and for people with PTSD holidays are often a trigger.
So what can you do, as a trans ally or another trans person who wants to help their trans siblings? What does a “trans-friendly Christmas” look like for those estranged from their families?
Supporting a trans person at Christmas doesn’t have to be perfect. It doesn’t demand huge gestures, it doesn’t mean that you should stop celebrating or play Grinch. Just remember that not everyone is celebrating. And even people like me, who are celebrating, sometimes feel too triggered by all the perfect family pictures.
But there is some way to help your trans friends.
Give them space. Not everyone wants to talk about Christmas. Not everyone wants to explain their estrangement. They may withdraw, or avoid festive events entirely. Respect that. As an expert working with mental health services, I can say that sometimes the best gift is the room to breathe.
Say: “I know this time of year can be difficult. I’m here if you want to speak, and I’m here if you don’t.” Or share your own bad experience, especially if you are speaking with autistic person.
Or just ready to support them in a way they need.
Acknowledge the pain, without feeling guilty if it’s not your fault, and provide some support.
This might mean:
- Inviting them to your home for a meal
- Checking in with a simple, trans-friendly message (“thinking of you today — hope you’re doing whatever feels right for you”) — especially if they like this kind of messages
- Suggesting a walk, a film night, or anything that doesn’t revolve around “family”
- Bringing them into chosen family traditions if they’re open to it
- Support trans community online
- Just share photos of your pets
Be prepared for triggers. Really. I often have a relapse in my mental health on holidays despite liking them. Or, because I have Dissociative Identity Disorder, I struggle with my child’s personality. Your friends who have PTSD or DID can have similar problems. Respect them even if they behave “childishly” — even when a person is mentally falling into their child state, remember that they still have agency. Listen to their stories. Help them create their own holiday traditions if they need to, or ask for professional help. Be patient. Depression, anxiety, or OCD can also be triggered during holidays even if a person with those conditions is in remission.
And, most important of all: listen.
Some trans people want community on Christmas. Some want silence. Some want to escape. Some want a tiny piece of normality. Some want their own queer or geeky Christmas. Some prefer to celebrate the new year. There is no universal script. Let them decide. And remember: support is the most important thing.
Not the holiday decorations. Not the perfectly curated “inclusive holiday.” Not expensive parties.
Because for many trans people who have lost their family, especially at Christmas, it is important to know that someone sees them, someone calls them by their chosen name, someone cares, someone wants them here even if their parents don’t.
And sometimes, that’s enough to make the season not just survivable, but enjoyable. This, by the way, is true for all holidays, whether it’s Hanukkah or New Year’s Eve.
Opinions
Reflecting on six years on the CAMP Rehoboth board
Purpose, people, and the power of community
Some people let life happen; I prefer to plan it—meticulously, intentionally, and yes, sometimes overboard. After losing many loved ones and navigating my own setbacks, I learned not to let life drift by; instead, I live it with intention—curating the people, commitments, and actions that bring joy and meaning, even if others mistake that intentionality for control.
True to form, I close each year with an annual life audit reflecting to see if my personal goals were achieved and, if not, why did I fall short. This habit reflects a simple philosophy: fulfillment doesn’t happen by accident. It comes from daring to imagine the life you want and living deliberately at work, in service to others, and in the everyday moments that make life meaningful.
This year’s assessment is a bit more complicated because on Dec. 31 I will conclude six years on the board of CAMP Rehoboth Community Center — two full three-year terms, including three years as board president. When putting pen to paper, I quickly realized the lessons from the last 12 months were six years in the making.
For those who may not know, CAMP Rehoboth (CAMP is an acronym for Create A More Positive) is widely recognized as the leading provider of life-affirming programs and services in support of LGBTQ people in Rehoboth Beach, Del., and the greater Sussex County area. Since its founding 34 years ago, CAMP’s work has enabled LGBTQ people to thrive. In fact, it is the reason my husband Greg and I (along with thousands of other LGBTQ people) decided to make this part of Delaware our home.
If the past few years have taught me anything, it is that leadership is not a position—it is a practice. It is a daily decision to show up with clarity, steadiness, and a willingness to hold space for others as we navigate change together.
Purpose is the compass. Purpose gives direction when circumstances shift, resources tighten, and competing demands threaten to pull us off course. At CAMP Rehoboth, our purpose has always been to ensure LGBTQ people have access to life-affirming programs, culturally competent services, and a place where they feel seen, valued, and supported. Purpose guided our leadership transition and executive director search, reminding us that the leader our community deserves must bring experience, emotional intelligence, and a deep understanding of what belonging means.
Values are the guardrails. They keep us aligned when opportunities, distractions, or pressures arise. Our values show up in our strategic planning, financial stewardship, and insistence that inclusion is a practice, not a slogan. They ensure that when challenges—political hostility, funding uncertainty, changing community needs—emerge, we respond with integrity instead of reaction.
People are the engine. Organizations don’t create impact — people do. Staff, volunteers, board members, donors, and community members together make the mission real. Investing in their capacity, wellness, and professional development ensures they can do their best work. When we take care of our people, they take care of the community.
I am a gay man who knows how obstacles can feel insurmountable and hope can falter having lived through the AIDS epidemic and fought for civil rights like the legalization of same-sex marriage. In those moments, I chose to focus on what I could control rather than what I could not. Getting involved gave me purpose and proved that fulfillment comes from taking action to make a difference—for yourself and for the broader community.
Gratitude is the culture.
As I close this chapter, what I feel most is gratitude. Gratitude honors those who built the foundation, celebrates those who carry the work forward, and reminds us that progress is a collective effort. Thank you to our staff, especially Executive Director Kim Leisey, who serve with skill and heart; to our volunteers like former board member Chris Beagle and current board president Leslie Ledogar, who give more than anyone will ever know; to our donors, who invest in possibility; and to the community that trusts us to be there in moments of celebration, struggle, and change. Finally, none of this would have been possible without the steadfast love of my husband and the unwavering support of close friends who lifted me in the moments I needed it most.
Reflection, planning, and intentionality do not guarantee perfection — but they make fulfillment possible. Life is too short to leave it to chance. By daring to dream, acting deliberately, and giving generously, we can create lives that are both meaningful and impactful — not just for ourselves, but for the communities we touch.
Wes Combs is an outgoing board member of CAMP Rehoboth.
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